U.S. Supreme Court to reexamine Section 5 of the Voting Rights Act

After witnessing the most overt and blatant GOP voter suppression efforts in this election that we have seen in years, the "Felonious Five" of the U.S. Supreme Court today agreed to hear a legal challenge to Section 5 preclearance of the Voting Rights Act of 1965.

Acting three days after the nation’s minority voters showed that they
have increased and still growing power in U.S. elections, the Supreme
Court agreed on Friday to
rule on a challenge to Congress’s power to protect those groups’ rights
at the polls. The Court said it would hear claims that Congress went
beyond its authority when it extended for another twenty-five years the
nation’s most important civil rights law, the Voting Rights Act,
originally passed in 1965 and renewed four times since then.

Specially at issue is the constitutionality of the law’s Section
5, the most important provision, under which nine states and parts
of seven others with a past history of racial bias in voting must get
official clearance in Washington before they may put into effect any
change in election laws or procedures, no matter how small. The Court
came close to striking down that section three years ago, but
instead sent Congress clear signals that it should update the law so
that it reflects more recent conditions, especially in the South.
Congress did nothing in reaction.

That would be because the U.S. Supreme Court does not get to legislate policy. The Congress does. The Court only decides whether Congress acted within the scope of its constituional authority, which it clearly did in this case, as the Court has held many times since 1965. [Note: Congress reauthorized the VRA most recently in 2006, by a vote of 390 to 33 in the House and 98 to 0 in the Senate.]

The Court accepted the voting rights case from Shelby County, Ala.

In agreeing to rule on the Voting Rights Act, the Court limited its
review to a question which it composed itself: ”Whether Congress’
decision in 2006 to reauthorize Section 5 of the Voting Rights Act under
the pre-existing coverage formula of Section 4(b) of the Voting Rights
Act exceeded its authority under the Fourteenth and Fifteenth Amendments
and thus violated the Tenth Amendment and Article IV of the United
States Constitution.” The Tenth Amendment protects the powers of
states by limiting Congress’s powers. Article IV guarantees each state a
“republican form of government,” meaning it is protected in its right
of self-government. The question specified by the Court differed from
that posed by Shelby County’s lawyers only by adding a reference to the
Fourteenth Amendment. The case to be decided is Shelby County v. Holder (12-96).

The Court took no action on another Section 5 case, from North Carolina: Nix v. Holder (12-81). That case apparently will be kept on hold pending the decision in the Shelby County case.

In other words, the "Felonious Five" are buying into the "states' rights" argument of Tenthers that states have the right to do whatever the hell they damn well please, even if it violates the federal constitutional rights, privileges and immunities of U.S. citizens. This would undermine the very premise of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as well as the 14th Amendment. The federal government has the right to step in to secure the rights of its citizens when a state is violating that citizen's federal constitutional rights.

The Court last examined a constitutional challenge to Section 5 of the Voting Rights Act in the 2009 case of Northwest Austin Municipal Utility District v. Holder.
There, the Court avoided a ruling on the constitutionality by creating a
broader right for some local governments to “bail out” from the law’s
coverage. Even so, the Court, in an opinion written by Chief Justice
Roberts, was sharply critical of Congress for having failed to make
coverage depend upon more recent experience in voting patterns,
especially in the covered states. The opinion said that the law imposed
special burdens on the covered states and local governments, and that
those burdens had to be justified by current needs, not by out-of-date
history.

Congress officially took no notice of that opinion. But covered
states and local governments definitely did so, and began a round of new
challenges, leading to Friday’s grant of the Shelby County case.

* * *

The constitutionality of Section 5 has also has been arising in
recent months as the Justice Department challenged new voter ID laws in
South Carolina and Texas, and in the congressional and legislative
districting dispute in Texas. So far, Section 5 has survived the new
round of challenges in the lower federal courts — as, indeed, it did in
the Shelby County case in the D.C. Circuit Court. In a split decision,
the Circuit Court majority upheld both the pre-clearance requirement —
spelled out in Section 5 — and the coverage formula, which is spelled
out in Section 4(b). The majority said the burdens were justified by
current conditions, found by Congress to show that the problem of racial
discrimination was continuing, and that the covered jurisdictions
remained among the problem areas.

The D.C. Circuit based its ruling both on the Fourteenth Amendment and the Fifteenth Amendment.

The question before the Court, as posed by the lawyers and as
slightly modified by the Court in granting review, encompasses not only
the pre-clearance requirement of Section 5, but also the coverage
formula — which is now forty years old. In the original act in 1965,
the coverage formula was set at 1964, but that was later moved to 1968
and then to 1972. That baseline year, of course, was kept in 2006 when
Congress approved the latest extension. In its ruling in the Northwest Austin case in 2009, the Court was quite critical of the failure to update that baseline.

As worded, the question will test whether Congress had the
constitutional authority to extend Section 5, when it did so without
altering the 1972 triggering date for coverage. Conceivably, the Court
could void the latest extension without questioning Congress’s authority
to use the pre-clearance requirement — provided that the burden of that
requirement falls on state and local governments only where Congress
can explicitly demonstrate that racial or language discrimination
continues in voting practices there.

The State of Arizona had filed a legal challenge as well, but that case was later withdrawn. You can expect that Attorney General Tom Horne will file an amicus brief in this case.

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